Restaurant Owners Adjusting To the New Immigration Law

By E. R. SHIPP

Published: December 30, 1987

THE restaurant industry has traditionally been a haven for immigrants, some of them illegal aliens. But restaurants, like other American industries, now must comply with a tough new immigration law. So far, restaurant owners say, the new law has meant, mainly, an increase in paper work and a shortage of workers to fill low-level jobs.

Glenn Rex, the executive director of the Houston Restaurant Association, said the paper work required by the law ''is an administrative nightmare.''

But more serious problems could lie ahead, according to legal experts and labor officials. There is uncertainty about how much access immigration officials will have to employment sites. And some say there will be increased litigation as illegal aliens try to hold onto their jobs.

Mr. Rex said that restaurants will be forced to pay higher salaries to attract properly documented workers, an expense that will be passed along to customers. ''The Government is legislating a $15 hamburger before the customers are ready to pay for it,'' he said. The law, formally known as the

Immigration Reform and Control Act of 1986, is designed to stem the flow of illegal aliens into this country and to preserve jobs for those who are lawfully entitled to be here.

According to one Government estimate, 11 percent of illegal aliens are employed by the apparel industry, 7 percent by restaurants and 6.5 percent by the construction industry.

Each of these industries has a large number of lower-level jobs.

It is not surprising that aliens are drawn to restaurant work, said Fred Sampson, the president of the New York State Restaurant Association, which represents 6,000 restaurants, 1,700 of which are in New York City. ''The thing about our industry,'' Mr. Sampson said, ''is that if you have been trained in food service in Athens, Barcelona, Rome or wherever, and you come to this country, you can fit right into a restaurant job. You scramble eggs the same way all over the world; you make basic soups the same way all over the world.''

The new law signals a change in the enforcement of immigration policy. Rather than merely penalizing undocumented aliens caught working in this country, the law imposes sanctions for those employing these aliens after Nov. 7, 1986. Employers must verify the identity of new workers, even those born in the United States, and must make sure they are legally entitled to work.

Those who violate the law are subject to civil and criminal penalties. Alan Nussbaum, the owner of

Club 1407, a restaurant at 1407 Broadway in the garment district of Manhattan, said that complying with the new law is bothersome. ''Like a lot of the regulations,'' he said, ''the problem is not abiding by them, but that the brunt of the policing always comes to the restaurateur.''

Employers must walk a legal tightrope: they must insure that no illegal aliens are hired but avoid discriminating on the basis of national origin or citizenship.

Ned H. Bassen, a lawyer with the Manhattan firm of Kelley Drye & Warren, has been counseling employers, including restaurateurs, in this matter. ''The traditional rule used to be that you don't ask because if you don't ask, you don't know,'' he said. ''And if you don't know, you can't discriminate. Now you are required to ask.''

There has been some concern that teen-agers, who frequently work in fast-food restaurants, may not have proper identifying documents. A spokeswoman for McDonald's, however, said she has found no problem with young employees. A spokeswoman for Kentucky Fried Chicken said problems concerning young workers had arisen in New York, New Jersey and Mississippi, but were resolved by having high schools issue work-authorization papers.

Mr. Bassen said that documentation will not be a problem for most workers. ''Documentation requirements resemble a Chinese menu because it's one from Column A and one from Column B and one from Column C,'' he said. ''There are enough alternatives that it's rare that someone who is legitimately authorized to work will be unable to come up with something that is going to fit.''

Hans Hoeft, the owner of the Kleine Konditorei restaurant at 234 East 86th Street in Manhattan, which has traditionally employed waitresses from Germany, also finds the paper work objectionable. But his recent staffing difficulties, he said, have less to do with the new immigration law than with an improvement in the German economy. ''In northern Europe the living conditions have really improved,'' Mr. Hoeft said, ''so no one is really interested in leaving their country.''

Others in the restaurant industry are more concerned about the law's impact on the labor pool for entry-level restaurant jobs. Many illegal aliens have worked as dishwashers, pot scrubbers and deliverers.

Michael O'Neal, the owner of four restaurants in Manhattan, said the law ''is creating pressure on the bottom.''

''The illegals are not getting in and the people who are legal are demanding more money because they know there's a shortage,'' Mr. O'Neal said.

According to labor lawyers and restaurateurs, some restaurants must now pay $7 an hour to fill jobs with workers who have legal status. These jobs used to be held by illegal aliens who were paid $2 or $3 an hour, or perhaps the minimum wage of $3.35.

''It's inflating the value of jobs,'' said Cynthia R. Darrison, the executive director of the Restaurant League of New York, an organization that represents 30 of New York City's more established, or ''white tablecloth,'' restaurants.

According to Mr. Bassen, highly regarded chefs can continue to qualify for special work visas on the ground that they possess ''distinguished merit and ability.''

Ms. Darrison agrees. ''I would imagine that the better restaurants would just spend serious money with immigration lawyers to bring the person in,'' she said. ''It can be done.''

There is now something of a mad scramble afoot as workers who entered this country illegally try to find records to prove that they have been here continuously since before Jan. 1, 1982, a stipulation of the new law. With documentation, they can be granted amnesty and can acquire legal status. But many have avoided creating a paper trail for so long that it is now nearly impossible to find proof of the length of their residence in this country.

''If they can't get anything together, I guess they will go back into the woodwork and just remain as they have been,'' said Madelaine A. Shriftman, a lawyer who is serving as immigration counsel to unions in the restaurant and hotel industries.

Some aliens are relying on an exception in the law: a grandfather clause that permits illegal immigrants employed before Nov. 6, 1986, to remain in their jobs without acquiring legal status. What many of these workers apparently do not know, according to legal experts, is that if they change jobs they will not be protected; nor will they be legally employable.

''They are just going to have to find an employer who's willing to gamble on getting caught,'' Ms. Darrison said.

Mrs. Shriftman said she believes that these workers might also be exploited by some employers who take advantage of their status.

Mr. Bassen predicted more litigation, as workers, aware of their limited options, fight to hold onto their jobs and challenge attempts by employers to discharge them.

''The ultimate affect of that would be to drive prices up,'' he said, ''because the restaurant owners will have to pay for defending the litigation.''